How to make a deal when the parties still want to fight

When a long-term personal or business relationship sours, exiting that relationship isn't easy. Lasting agreements cannot be reached without trust, respect, and communication -- all of which are missing in a broken relationship. How can parties come to financial terms when there is no trust, they hate each other, and aren't speaking?

There are many ways things go wrong in a negotiation. A settlement requires reasonable parties and reasonable counsel. And while the legal system is often focused on how unreasonable parties can behave, attorneys have the same capacity to make a dispute worse.

Lawyers are often their own worst enemy. Experienced lawyers know what a case is worth, and want to tell our clients, or the other side, how it should turn out. But from my experience, that may be rushing things. Before addressing the deal points, it is more effective to attack the problem at its source and build foundational trust. If we restore some trust, respect, and communication, we will be on the road to agreement.

My negotiations involve spouses who are divorcing and need to divide property, set support, and make a coparenting plan. These parties typically do not trust or like each other; often because one cheated, or was abusive. Family law disputes are highly personal, reaching into every aspect of their lives. They cannot move forward until their issues are resolved by agreement, or by the court, which can take years.

But, while trust may never be restored completely, I've learned I can build enough of it to make a deal. In the divorce world, I use financial disclosures as the first step. The parties are required to make a financial disclosure, but many practitioners delay or fail to take the process seriously. It is a missed opportunity to show the other side that, despite what happened before, there will be transparency on finances. Being meticulous, careful, and honest with disclosures can reduce the temperature of the negotiations. Conversely, a poor disclosure will only reinforce negative views about our client.

I've also found the importance of listening. Conflict cannot be resolved without understanding what the other side wants and why they want it. Allowing parties to express those thoughts makes them feel like they are heard and understood. They might be willing to hear our perspective after we have listened to theirs. Clients can get upset when their lawyer talks to the other side, thinking their lawyer is disloyal or weak, so it is essential to let the client know the plan.

It is hard to resist the urge to blast the other side by telling them all the things they have done wrong. I try to avoid that by asking the other side what information they need and what their timing is for making a deal. That keeps the conversation forward-looking. I model that behavior for my clients, assisting them with messages to their spouses that avoid rehashing the conflict.

Following these steps will set the table for agreement. Along with laying this groundwork, I find it essential to use a mediator to keep everyone on track. This is most effective when the mediator is brought in early, to set a timetable for exchanging information, and reaching a deal. It is a lot of work, but it is the best way out of these disputes.

Addressing the roadblocks underlying the conflict is more effective than diving into deal terms. Listening to the other side, and treating them with respect, reduces the temperature of the dispute, and allows our client's wishes to be heard. 